|
|
Enron Mail |
Today I received instructions from Ricardo Lisboa stating that all EOL
agreements (PA, ETA and GTC) should be prepared in the English language. I was also told that ESA plans to launch the EOL website on February 1, 2001 (or mid-January 2001). Since the EOL website is owned and managed outside of Brazil by a wholly-owned subsidiary of Enron Corp, both PA and ETA will be entered into between a US entity and a Brazilian customer. In principle, both PA and ETA could elect foreign law and foreign jurisdiction, as well as English language. Please be advised that, according to the Brazilian Consumer Code, a consumer is any individual or legal entity that acquires or employs products or services as an end-user. I am considering that most of the ESA gas and power marketing deals will not be closed with end-users. I am currently checking with Brazilian local outside counsel whether it is OK that both PA and ETA will have NY Laws and NY Courts/Arbitration, however, on the other hand, the GCT will elect Brazilian Laws and ICC Arbitration in Brazil. In case of a dispute or controversy arising from the PA and/or the ETA, the Brazilian customer may seek application of Brazilian Laws and may file a suit in Brazil. Since it is very likely that a Brazilian judge accepts jurisdiction to review a potential claim arising from the PA and/or the ETA, we may have to consider using Brazilian Laws and ICC Arbitration in Brazil for both PA and ETA. In case ESA intends to close gas and power marketing deals with end-users, please be advised that, in relation to both PA and ETA, although foreign law and foreign jurisdiction can be elected, there are Brazilian court precedents confirming that a Brazilian judge will accept the case and apply Brazilian laws. Also, under this scenario, all PA, ETA and GCT should be executed in Portuguese language, as per Brazilian Consumer Code provisions. Please be advised that the draft GTC for power marketing deals has been finalized in Portuguese and will be interpreted/translated into English shortly. I should finalize the legal review of the PA and the ETA as soon as there is a final decision with respect to choice of law and choice of jurisdiction for these agreements Rgds, Sami
|